The employment attorneys and business litigation attorneys at Nardone Limited in Columbus, Ohio, regularly assist our clients with litigation as well as agreement drafting regarding non-compete and non-solicitation agreements. Increasingly, Nardone Limited has found that social media has become a key concern in disputes about non-solicitation and non-compete in the digital age. In fact, our firm has recently handled multiple disputes regarding non-solicitation litigation where the central issue dealt with social media activity and whether the social media activity fell within the scope of a non-compete and non-solicitation provision. And, we anticipate that this issue will continue to arise more and more in future cases.
Within the past decade, social media has become integrated in both the professional and personal lives of working professionals, and social media sites are increasingly used recruiting tools. With the influx of networking, connecting, recruiting, messaging, posting, and blogging all being hosted on social media sites, the question facing courts in the social media age is: what types of social media activity, if any, constitute a breach of a non-compete and non-solicitation agreement? This article reviews the current state of the law regarding litigation on whether social media activity by former employees may violate restrictive covenants in employment contracts. Additionally, the article discusses how businesses can protect their legitimate business interests through careful drafting of non-compete and non-solicitation clauses in staff employment contracts.
Courts’ Prevailing Approach to Social Media Activity and Restrictive Covenants
Although there is not yet a well-developed body of law on this issue, Courts have begun to interpret the question of whether social media activity amounts to an actionable breach of a non-compete or non-solicitation agreement. The general consensus among most courts is to analyze the social media activity based on the “substance of the message conveyed, and not the medium through which it is transmitted.” Bankers Life and Casualty Co. v. Am. Senior Benefits, 2017 IL App (1st) 160687, ¶21, quoting Amway Global v. Woodard, 744 F.Supp.2d 657, 674 (E.D. Mich. 2010). i.e., Social media activity like “friending” or connecting on LinkedIn is, in itself, generally not found to be a solicitation. Communications over social media that are truly passive in substance have not been held to be a breach of a non-compete or non-solicitation agreement. On the other end of the spectrum, communications that are an actual and direct recruitment, competition, or solicitation are actionable for breach. The threshold for where passive communications turn into actionable conduct under a restrictive covenant is a grey area that courts continue to interpret.
To date, courts have analyzed whether the act of networking with a client or employee gives rise to actionable conduct. Overwhelmingly, courts have found the mere act of sending or accepting a generic friend or connection request with a former client or former co-worker on a social media website is not sufficient to breach a non-solicitation provision. See, NDSL v. Patnoude, 914 F.Supp.2d 885, 894-95, (W.D. Mich. 2012); Bankers Life and Casualty Co. v. Am. Senior Benefits, 2017 IL App (1st) 160687, ¶ 23; Invidia v. DiFonzo, No. MICV20123798H, 30 Mass.L.Rptr. 390, 2012 WL 5576406 (Mass. Super. Ct. Oct. 22, 2012);
Further, courts have also analyzed whether certain postings on a social media profiles give rise to actionable conduct. In such a circumstance, the answer depends on the substance of the message in the post. For example, posts that indicate a change in employment or opening of a job position have been found to not be actionable conduct. See, Bankers Life and Casualty Co. v. Am. Senior Benefits, 2017 IL App (1st) 160687, ¶ 23; BTS, USA v. Executive Perspectives, Superior Court, judicial district of Waterbury, No. X10CV116010685, (Oct. 16, 2014) (2014 WL 6804545) *12; Invidia v. DiFonzo, No. MICV20123798H, 30 Mass.L.Rptr. 390, 2012 WL 5576406 (Mass. Super. Ct. Oct. 22, 2012); But, a post that encourages employees to leave their current employers, encourages certain employees to contact for an employment position, and entices clients to call for sales purpose, have all been situations in which courts have decided that social media activity crossed the threshold into actionable conduct. See, Amway Global v. Woodward, 744 F.Supp.2d 657, 674 (E.D.Mich. 2010); Coface v. Newton, 430 Fed.Appx. 162, 164 (3rd Cir. 2011); Mobile Mini v. Vevea, No. 17-1684, 2017 WL 3172712 (D. Minn. July 25, 2017). The way in which this area of law has developed narrowly defines social media activities that are actionable for non-compete and non-solicitation purposes.
Addressing Social Media Activity in the Drafting of Non-compete and Non-Solicitation Agreements
Businesses are left in a position where a great deal of social media activity does not qualify as actionable. Courts have recognized that, “Absent an explicit provision in an employment contract which governs, restricts or addresses an ex-employee’s use of such [social] media, the court would be hard pressed to read the types of restrictions urged here, under these circumstances, into the agreement.” BTS, USA v. Executive Perspectives, Superior Court, judicial district of Waterbury, No. X10CV116010685, (Oct. 16, 2014) (2014 WL 6804545) *12.
But, a business can still take measures to protect itself from social media activity that may be seen as passive under the law, by carefully drafting non-compete and non-solicitation agreements to reasonably restrict employees from friending or connecting with clients or patients of their former employer on social media. Businesses can protect their legitimate business interests by specifically detailing the types of social media activity that would be an improper solicitation or competition. By having employees agree that passive social media activity will be deemed a solicitation, employers can further protect their business from solicitation and put themselves in a much stronger legal position if facing this grey area in the law.
The Nardone Limited employment attorneys handle a full spectrum of employment law issues, including business disputes and litigation, drafting of employment and restrictive covenants, and consultation on employment law issues. If you need advice or representation in an employment dispute before the EEOC, the OCRC, or regarding potential employment litigation contact one of our employment attorneys. Further, feel free to contact Nardone Limited if you would like more information or consultation about implementing employee restrictive covenants in your business.